The Supreme Court’s ruling in Trump v. CASA that universal injunctions “likely exceed the equitable authority” Congress has granted federal courts has been framed as a victory for a Trump administration stymied by an unprecedented barrage of them.
But the majority’s 6-3 opinion in favor of the administration’s challenge to universal injunctions — via its appeal of several such rulings in cases consolidated under CASA, whereby courts halted its executive order curtailing birthright citizenship — is far greater than a win for one president. It is a triumph for the rule of law and our republic over judicial tyranny, though it comes with loopholes that Resistance 2.0 is already plotting to drive a truck through in its ongoing lawfare campaign.
First, the good. The status quo ante, whereby an opponent of a presidential policy needed only to find a single favorable district court judge to prohibit the enforcement of that policy against anyone, everywhere, was an absurdity and an abomination.
Courts exist to decide cases and controversies concerning the parties before them. The idea that an unelected judge in any district would deign to effectively expand his jurisdiction to the entire country by adding everyone as a plaintiff to a suit was an affront to our Constitution and common sense. Judges effectively coronated themselves as presidents in overriding executive decisions on personnel, policy, and practices. Thus the pre-CASA judiciary effectively disadvantaged and disenfranchised tens of millions of Americans who elected the commander-in-chief.
Inferior court judges elevated themselves not only above the president but Supreme Court justices too in unilaterally rendering opinions with nationwide effects, “invert[ing]” the typical appellate process, as Solicitor General John D. Sauer put it in oral arguments.
The Supreme Court’s ruling, however, rightly focused not on political or practical matters, but on first principles. The prevailing universal injunction regime, it argued, was anathema to American jurisprudence and its antecedents.
“Neither the universal injunction nor any analogous form of relief was available … at the time of the founding,” Justice Amy Coney Barrett wrote for the majority.
As the court noted, universal injunctions are a novel remedy that arguably emerged in the 1960s. But they really only exploded in recent decades, namely under the first Trump administration, as I have chronicled at RealClearInvestigations.
“The bottom line,” Barrett wrote, is that “[t]he universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority.”
Removing universal injunctions as a weapon of lawfare undermines the Resistance 2.0’s primary effort to stymie and sabotage Trump’s second term and the MAGA agenda. It neutralizes the judicial tyrants who have worked hand-in-glove with the Resistance in that effort. It also vindicates the jurisprudence of Justice Clarence Thomas, who once again was years ahead of the court but ultimately won it over in challenging universal injunctions.
Furthermore, it puts radicals in robes in the lower courts, who have suffered from delusions of grandeur, in their rightful place by disarming them of this legal WMD.
But the majority’s opinion is no panacea. Setting aside the fact that the court withheld judgment on whether universal injunctions would be legitimate should Congress permit them by law, and remained silent on what some perceive to be their analogues such as vacatur, it also refused to resolve pivotal questions of standing and channeled plaintiffs seeking widespread relief to potential universal class-action lawsuits.
Justice Samuel Alito addressed the latter two caveats in a critical concurrence joined by Thomas. As the associate justice noted, states, including in cases consolidated in Trump v. CASA, have sued on behalf of litigants, including their residents, with judges conferring “third-party standing” on them. Alito posed a hypothetical likely to become very real then, when asking in his concurrence whether injunctions granted to states will protect all of their citizens.
“If so, States will have every incentive to bring third-party suits … to obtain a broader scope of equitable relief than any individual resident could procure in his own suit,” Alito said. “Left unchecked, the practice of reflexive state third-party standing will undermine today’s decision as a practical matter.”
Justice Alito’s other concern is that lower court judges may not vigorously enforce the requirements necessary for plaintiffs to obtain class certification, pursuant to Rule 23 of the Federal Rules of Civil Procedure. These strictures are seen as a check on plaintiffs’ ability to secure injunctions as expansive as those under the pre-CASA regime.
If judges take a lax view of the requirements to obtain class certification, Alito warns, “the universal injunction will return from the grave under the guise of ‘nationwide class relief,’ and today’s decision will be of little more than minor academic interest.”
Shortly after the court issued its opinion, so-called “immigrants’ rights advocates,” led by the ACLU, filed a “nationwide class-action” lawsuit challenging the birthright citizenship order challenged in the CASA cases.
Norm Eisen, one of the leaders of Democrats’ lawfare efforts against President Trump, revealed almost immediately after the Supreme Court’s decision that Resistance 2.0 plaintiffs would be filing class-action lawsuits in pursuit of de facto universal injunctions.
Further vindicating Alito’s concerns, D.C. District Judge Randolph Moss certified a massive class in an injunction entered shortly after CASA, halting President Trump’s first-day proclamation and guidance suspending asylum claims for those crossing the southern border. The class consists of all those who are or will be subject to the policy, who are or will be present in the U.S. In other words, Judge Moss entered something approaching a universal injunction.
The Supreme Court has raised the bar significantly for those seeking to block presidential policy via the courts. But ultimately, as Alito’s opinion reflects — and as is already being demonstrated by some on the federal bench — the courts will only be as good as the judges presiding over them.
Unless the Supreme Court reins in lower-court judges with blunt deterrent force or Congress asserts its power over the courts it established, judicial tyranny may persist.
Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.
